NFL and retired players state their cases in federal court

PHILADELPHIA — The NFL’s dispute with retired players over the risks and impact of concussions unfolded Tuesday in Philadelphia on two distinct, but perhaps equally important, battlegrounds.

The first was a seventh-floor courtroom at the federal courthouse, where lawyers for the league and players sparred over if, when, and how the NFL bears responsibility for head trauma that players may have suffered during years of violent collisions.

The second emerged in a hotel conference room several blocks away. There, cameras swarmed as Mary Ann Easterling cried while mentioning her husband Ray, a defensive back who had dementia and killed himself at 62 last year, and as Kevin Turner, a former Eagles fullback, struggled to talk and said he might not live to see the case’s end.

“Unfortunately there’s a lot of us that don’t have 10 years to find out what the decision is,” said Turner, 43, who suffers from amyotrophic lateral sclerosis, or Lou Gehrig’s disease, that he blames on the on-field poundings he took.

Turner and Easterling have become two faces of the movement, and represent the public-relations challenge for the NFL as it fends off lawsuits from 4,200 former players and their relatives, who contend the league knew, but hid, the long-term impact of concussions to protect its billion-dollar enterprise.

They want the NFL to pay fraud and negligence damages and to establish medical monitoring for past and present players.

The league has denied hiding any risks and insists player safety has always been a top priority.

In the first hearing since the cases were consolidated under one judge in Philadelphia last year, a league lawyer urged U.S. District Judge Anita Brody to dismiss the claims.

The lawyer, former U.S. Solicitor General Paul Clement, argued that player injuries and treatment are covered by players’ union contracts with team owners, and that well-established labor law says disagreements over contract interpretations must be resolved in confidential arbitration, not in open court.

“This case is, at bottom, a case about workplace safety in an industry in which issues of workplace safety were a recurring subject of collective bargaining,” he told Brody.

He also said decisions on players’ injuries and their ability to return to the field rested primarily with the clubs and their medical staffs, but the players can’t sue the clubs because those complaints would indisputably be shifted to arbitration.

David Frederick, a lawyer for the retired players, contended that the alleged fraud and negligence by league officials — including a deliberate campaign of misinformation — aren’t addressed by the collective bargaining agreements. And as the effective “guardian” of football, he said, the league had a broader duty to players than one team, coach, or doctor ever could.

“The NFL had held itself out to be the guarantor of player safety,” said Frederick, “so when the NFL began to publicly monetize and glorify violence on the field, it breached its duty of due care because it was attempting to speak, in effect, out of both sides of its mouth.”

Clement countered that the judge couldn’t rule on the league’s duty to players without interpreting the contracts, which is the arbitrator’s job.

“I don’t think it’s possible to ascertain the scope of that duty, without determining the scope of the collective bargaining agreements,” he said.

Hundreds of lawyers, players, reporters, and other observers packed the judge’s courtroom and an overflow room to watch the hearing.

Her courtroom was so stuffy — a combination of unseasonable temperatures and power problems in the building — that Brody urged the lawyers to shed their coats. Frederick did; Clement did not.

A judge for 30 years, she offered no obvious clues to her thinking — or her timetable for a decision — as she patiently questioned the lawyers and listened to 50 minutes of their replies.

When Clement mentioned the Health and Safety Committee, the league established to address current and former players issues, Brody called it “a committee that doesn’t really have any clout — it can say things, but it doesn’t have any controlling effect.”

She also noted, offhandedly, that her grandson plays football — she didn’t say where — but asked the players’ lawyer if his argument over the NFL’s breach of duty wouldn’t also extend to any school-age player “because, after all, (the league) committed the same offense to all the high school players.”

Frederick said it would.

“What the league has asserted for itself is the duty to be the superintendent of the game of football from Pop Warner — which is the junior league — all the way up,” he said.

Brody’s ruling is not expected for weeks or months, and is almost certain to be appealed. The NFL lawyers made clear that their motion to dismiss was just the first step in combating the lawsuits. If all or part of it fails, they are likely to contend that many of the suits fall outside the statute of limitations for civil claims, or to press players to pinpoint a specific injury or decision that harmed them.

The months or years that it could take is what makes the second front, the public-relations battle launched by the players and their lawyers, notable.

Easterling’s husband was a safety for the Atlanta Falcons in the 1970s. He was one of the first former players to have been diagnosed with chronic traumatic encephalopathy, a progressive brain damage linked to concussions.

With her and Turner at the news conference were other players and widows of players who are suing the league.

Among them were Lisa McHale, whose husband Tom, a former Eagles offensive lineman, was also found to suffer from CTE after he died of an accidental drug overdose in 2008, and Eleanor Perfetto, whose husband, former Pittsburgh Steelers guard Ralph Wenzel, died last year after two decades with dementia.

Another plaintiff, former Eagles linebacker Bill Bergey, said that during his playing days he was expected, or even told to, return to action after getting “dinged.”

“I had three concussions — that I remember — and I had three real, real bad ones,” said Bergey, 68, who lives in Chadds Ford. Too many of his former teammates or opponents have died, he said.

Bergey didn’t outline his own medical problems, but said he didn’t join the litigation for a payout.

“This game with me, it’s not a money game,” he said. “It’s a health game with me.”